Homeland Security

Military Detention of Non-Citizens and the Not-So-Negative Implications of the New Feinstein Amendment

By Steve Vladeck, Marty Lederman
Friday, December 7, 2012, 8:18 AM

As Wells and Steve noted last week, the Senate approved the “Feinstein Amendment” to the FY2013 National Defense Authorization Act (NDAA). The Amendment, if enacted, would impose a clear statement rule for the detention of U.S. citizens and lawful permanent residents (LPRs) apprehended within the United States, the effect of which would guarantee that such individuals could not be “detained without charge or trial,” even if they are suspected of being part of al-Qaeda. As Steve explained, the Amendment would expressly provide that such military detention authority cannot be inferred from a declaration of war or an authorization to use military force, but must instead be expressly conferred by Congress—a standard that no existing statute satisfies. (To be clear, this does not mean that terrorists and other dangerous persons cannot be apprehended in the United States; federal law expressly authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” Additional statutes invest other federal officers with comparable arrest authority, and expressly authorize, e.g., the detention of material witnesses, and of non-citizens in certain deportation cases. But indefinite military detention of the sort to which Jose Padilla was subjected would be precluded.)

Because the Obama Administration already has committed to processing suspected terrorists arrested inside the United States in Article III courts, “in keeping with long-standing tradition,” the new Feinstein Amendment would be academic at least through January 2017. Nevertheless, if it were to be enacted, the Amendment would ensure that a future President could not construe the September 18, 2001 Authorization for Use of Force (AUMF), the FY2012 NDAA, or any comparable statute to authorize the military detention of citizens and LPRs apprehended within the United States. If a future Congress wants to authorize such detention, it will have do so clearly and unambiguously.

All of the 29 votes in the Senate against the new Feinstein Amendment came from Senators who oppose any such limits on the Executive. Notably, however, most of the opposition to the Amendment since its Senate approval has come not from the right but from human rights and civil liberties groups. Below the fold, we explain why we believe the arguments against the new Feinstein Amendment from that perspective are off the mark.

Emblematic of this opposition to the new Feinstein Amendment is a post by Jonathan Hafetz over at Opinio Juris, in which he laments the Senate’s passage of the Amendment, at least in part because it does not go far enough. The Amendment does not, in particular, provide any protection to non-citizens in the United States other than LPRs—such as refugees and asylees; those temporarily resident on business, student, tourist, or other visas; those who have been living in the United States out of status; and those apprehended as they arrive on U.S. territory, e.g., at an airport.

We share Jon’s regrets about the Amendment’s limited scope. As Jeh Johnson has recently stressed, the use of military authority on U.S. soil is inconsistent “with our core values and our American heritage—reflected, no less, in places such as the Declaration of Independence, the Federalist Papers, the Third Amendment, and in the 1878 federal criminal statute, still on the books today, which prohibits willfully using the military as a posse comitatus unless expressly authorized by Congress or the Constitution.” Indeed, Senator Feinstein agrees that the Amendment ideally would be broader. As she explained in introducing it, “I would support providing the protections in this amendment to all persons in the United States whether lawfully or unlawfully present. But the question is . . . Is there enough support in this body to expand this amendment to cover others besides U.S. citizens and green card holders? I do not believe there is. . . .  So my hope is that at least we can clear up the law with strong protections for citizens and legal permanent residents.”

The new Feinstein Amendment accomplishes that much—it does protect the vast majority of persons in the United States from noncriminal detention without express statutory authorization, and (if the Senator is correct) is the most comprehensive such protection the Senate would be willing to approve. So why oppose it?

Jon alleges that it would actually “undermine protections for millions of non-citizens in the United States (who are not LPRs).” If that were so, we’d have serious reservations about the Amendment. But it would do nothing of the sort. Instead, it would leave the law respecting all other (non-covered) non-citizens exactly where it is today—no better, but also no worse.

Indeed, section (b)(3) of the Amendment was included precisely in order to ensure such a preservation of the status quo. It provides that the Amendment’s clear statement rule, which protects only citizens and LPRs, ”shall not be construed to authorize the detention of . . . any other person who is apprehended in the United States.” As Senator Durbin explained on the Senate floor, section (b)(3) thereby guarantees that “in adopting this amendment, the Senate is not implicitly authorizing the indefinite detention of anyone. To the contrary, the language [of (b)(3)] makes it clear that this amendment does not change existing detention authority of non-U.S. citizens and non-lawful permanent residents in any way.”

In other words, the question of whether the 2001 AUMF authorizes the military detention of other, non-LPR non-citizens apprehended in the United States remains an open question, just as it was when the Supreme Court granted certiorari to resolve it in the al-Marri case during its October 2008 Term—and the new Feinstein Amendment has no bearing on the answer. (As Steve has explained at length previously, thanks to the “original” Feinstein Amendment, the FY2012 NDAA also preserves the status quo for individuals arrested within the territorial United States.) In other words, there is no risk that the new Feinstein Amendment might, through negative implication, provide detention authority in any case in which such authority did not previously exist.

Jon nevertheless argues that the new Feinstein Amendment “undermin[es]” the argument that he (among others) made with respect to the AUMF in al-Marri—namely, that courts should not construe a force authorization statute to authorize domestic detention absent a clear statement of such congressional intent. Because the new Feinstein Amendment itself establishes a clear statement requirement for LPRs, Jon suggests, it must be the case that no such clear statement requirement applies to the detention of other non-citizens. But that does not follow. If the previous clear-statement-requirement argument was viable, it was because there is a constitutionally generated background rule of statutory construction requiring such a plain statement of legislative intent when it comes to potentially indefinite detention of persons apprehended in the United States. The fact that the Senate has now established a distinct, statutory clear statement rule does not affect the question of whether the courts should generally impose any such background presumption in cases not covered by the new Feinstein Amendment.

Jon also argues that the Feinstein Amendment “weakens the principle that due process applies to all regardless of citizenship,” and thereby “widen[s] the rift between international human rights and the U.S. Constitution.” But the new Feinstein Amendment does nothing to affect the question of whether and how the Fifth Amendment’s due process protections apply to non-citizens within the United States. The Due Process Clause provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” Accordingly, it protects (at a minimum) all persons in the United States, at least to some extent. Of course, it may protect different sorts of persons in different ways for certain purposes.  It is well-established, for instance, that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.” That is to say, LPRs, like citizens, may have more robust due process rights in some situations than other non-citizens present in the United States—but that was true before the new Feinstein Amendment, and it will be true thereafter.

We agree with Jon (and with Senator Feinstein) that the new Amendment is underinclusive, and is therefore imperfect. But we do not believe that a future court—or Executive Branch—would conclude that the new Feinstein Amendment actually increases the government’s power to detain non-LPR non-citizens arrested within the territorial United States. You shouldn’t either.